Petition for Writ of Certiorari — Thompson v. Schroder

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Bo-9 91. | FILED

~ ' DEC 19 3989

JOSEPH F. SPANIOL, JR,

No CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1989

IN RE: ESTATE OF MALLIE THOMPSON

(EDDIE THOMPSON, JR.),

Petitioner

VS.

HONORABLE WILFRID SCHRODER

PROBATE JUDGE, KENTON DISTRICT COURT,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE KENTUCKY COURT OF APPEALS

EDDIE THOMPSON, JR., Pro Se

P.O. BOX 1221 :

(606) 491-6278

COURT INDEX PRESS, INC. — 215 E. Ninth Street, Cincinnati, Ohio 45202 — (513) 241-1450

QUESTIONS PRESENTED

Can District (Probate) Judge arbitrarily deny person duly

qualified and entitled to “Appointment as Administrator of

deceased mother’s estate,” said appointment without just

cause? K.R.S. 395.040(1)?

te Ill

TABLE OF CONTENTS

Page

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ea ere 3

Reasons for Granting the Writ....................... 6

Ta 10

fmmueae OF PTOOE OF Service ................. 0.0.00 ll

APPENDIX

dy bya a eS aM eK Mo eo eae ws la

Petition for Appointment of Administrator ............ 2a

COS OD ec tence eee 4a-]

sake kee c kn oes e eee van 4a-2

Statement of Appeal (Petition for

Ee rT ee 5a

Circuit Court Opinion (ignoring petition

en RE eee 9a

Order, Overruling motion for rehearing .............. lla

Order, Court of Appeals March 20, 1989.............. 12a

Order, Court of Appeals May 9, 1989................. 13a

Ee ree l4a

IV

TABLE OF AUTHORITIES

Cases: Page

Broderick v. Rosner, 294 U.S. 629,

TOL Bee AIUD, SOS Cee... ccc caaee, 2,9

Conley v. Gibson, 355 U.S. 41, 78 S Ct 99,

ee ee ee 2,8

Davis v. Wechsler, 263 U.S. 22, 68 L Ed 143,

a alt chee wl tee eae T4 a tek cs ot vas 2,9

Holts v. Keller, 319 S.W. 2d 45 (Ky CA 1958).......... 6

Kenny v. Supreme Lodge, L.O., 252 U.S. 411,

ee 9

Mallard v. U.S. District Court, Southern District of

ee ere ee 2, 10

Neitzke v. Williams, 109 S Ct 1827 (1989) ............. 2, 8

Puerto Rico v. Branstad, 107 S Ct 2802, 2808 .......... 2,10

Schmitt v. The Kentucky Trust Company,

ee en eee ie a eee ive eek 7

Skaggs v. Cook, 374 S.W. 2d 857 (KY 1964) ........... 6

U.S. v. Ron Pair Enterprises, Inc., :

Pe ee kee eich ce k se Pens 2. 10 |

CONSTITUTIONAL PROVISIONS

Federal

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STATUTORY PROVISIONS

Federal

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State

ree 1, 3, 4, 6, 8, 10

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1989

NO.

IN RE: ESTATE OF MALLIE THOMPSON

(EDDIE THOMPSON, JR.),

Petitioner

VS.

HONORABLE WILFRID SCHRODER

PROBATE JUDGE, KENTON DISTRICT COURT,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE KENTUCKY COURT OF APPEALS

Comes now Petitioner, Eddie Thompson, Jr., (hereinafter

Petitioner) and respectfully prays that a Writ of Certiorari

issue to review the Judgment and Order of the Kentucky

Court of Appeals.

OPINION BELOW

The Kenton District Court denied Petitioner's unchal-

lenged Petition for Appointment of Administrator of his

deceased mother’s estate on April 25, 1988, (NR 4, App. P.

la, 2a) Petition for Rehearing denied on June 1, 1988. (NR

10, App. P. 4a-1, 4a-2) Notice of Appeals was filed on June

29, 1988. (NR 11). On February 16, 1989, the Kenton Circuit

Court refused to consider petitioner's (appeal) Petition for

2

Writ of Mandamus (App. P. 9) Motion for Rehearing and/or

Reconsideration was denied on April 12, 1989. (App. P. 11).

Petitioner's (appeal) Motion for Discretionary Review was

denied by the Kentucky Court of Appeals on May 9, 1989.

(App. P. 13) The Kentucky Supreme Court denied Motion for

Discretionary Review on September 20, 1989. (App. P. 14)

JURISDICTION

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 1257(3)." The Supreme Court of Kentucky denied

Discretionary Review on September 20, 1989, (App. P. 14),

and this Petition for Writ of Certiorari is filed within ninety

(90) days of that date.

The following decisions of this court sustain jurisdiction of

this Court.

Broderick v. Rosner, 294 U.S. 629, 79 L Ed 1100, 55

S Ct 589

Conley v. Gibson, 355 U.S. 41, 78 S Ct 99, 2 L Ed

80 (1957)

Davis v. Wechsler, 263 U.S. 22, 68 L Ed 143, 44 §

Ct 13

Mallard v. U.S. District Court, Southern District of

Iowa, 109 S Ct 1814, 1818

Neitzke v. Williams, 109 S Ct 1827 (1989)

Puerto Rico v. Branstad, 107 S Ct 2803, 2808

U.S. v. Ron Pair Enterprises, Inc., 109 S Ct 1026,

1030

1 28 U.S.C. § 1257 provides: Final Judgments or Decrees rendered by the

highest court of a state in which a decision could be had, may be reviewed

by the Supreme Court as follows: (3) By Writ of Certiorari, where the

validity of a treaty or statute of the United States is drawn in question or

where the validity of a State statute is drawn in question on the grounds of it

being repugnant to the Constitution, treaties or laws of the United States, or

where any title, right, privilege or immunity is specially set up or claimed

under the Constitution, treaties, or statutes, or commissions held or authori-

ty exercised under the United States.

3

STATEMENT OF FACTS

The instant action was filed pursuant to K.R.S. 395.040

(1).?

On April 25, 1988, Kenton District (Probate) Judge

Schroder held a hearing on Petition (NR 2, App. P. 1) filed by

Petitioner to be appointed Administrator of his deceased

mother’s (Mallie Thompson’s) estate, with notice (NR 1, See

proceeding, App. P. 1) to interested parties: Petitioner's

father (E. J. Thompson, Sr.) and Petitioner's two brothers

(James and Rudy Thompson). All interested parties agreed

before the filing of the petition, that no objections would be

filed, thus petitioner filed waiver of recording of proceedings.

(NR 3, See App. P. 1)

Only petitioner and his father (E. J. Thompson) attended

the hearing. No objections were filed and E. J. Thompson

made no objections te the appointment of petitioner as Ad-

ministrator of his deceased mother (Mallie Thompson).

Petitioner informed Judge Schroder that Affidavit of Des-

cent has been filed on all real estate involved in the estate.

Judge Schroder asked Petitioner if Petitioner had prepared a

letter of Administration. Petitioner replied no. When Peti-

tioner left the hearing, Petitioner assumed a letter of ad-

ministration was forthcoming. Three (3) days after the hear-

ing, Petitioner visited the clerk's office to check the record.

No order granting or denying the letter of administration had

been filed.

Petitoner visited Judge Schroder’s chambers, where Judge

Schroder informed Petitioner that he (Judge Schroder) would

not grant the appointment of Petitioner as administrator? of

2 K.R.S. 395.040(1) provides. The Court SHALL grant administration to

the relations of the deceased who apply for administration preferring the

surviving husband or wife, or if the surviving husband or wife does not

nomiate a suitable administrator, then such others as are entitled to

distribution, or one (1) or more of them whom the court judges will best

manage the estate.

4

his deceased mother’s estate, because, “real estate was in sur-

vivorship.” Petitioner informed Judge Schroder that, there

was no question of, “real estate in survivorship” before the

court. The only question before the court was, “the appoint-

ment of Petitioner as administrator of his deceased mother’s

estate,” pursuant to K.R.S. 395.040(1).?

Petitioner asked Judge Schroder to give his legal reasons for

denying the appointment. Judge Schroder gave none. (NR 4,

App. P. 3) Petitioner filed a motion for a rehearing (NR 5, See

App. P. 1) and requested that the proceedings be steno-

graphically recorded.

At a hearing on June 1, 1988, Petitioner informed Judge

Schroder that there was no issue of any “property in survivor-

ship” and presented a copy of the deed E. J. Thompson, Sr.

had at the hearing of April 25, 1988. (NR 9, See App. P. 1)

Petitioner further informed Judge Schroder that the purpose

of the rehearing was to put on record any alleged evidence of

any “property in survivorship” E. J. Thompson, Sr. was al-

leged to have. Judge Schroder said, “This could not be done

because E. J. Thompson, Sr. was not present.” Petitioner

made an oral motion for continuance, so that any alleged

evidence of any “property in survivorship” that E. J. Thomp-

son, Sr. had could be made a part of the record. Judge

Schroder overruled that motion. Petitioner requested that the

record reflect that Petitioner's oral motion for continuance

was overruled. Judge Schroder said, “The record will reflect

the oral motion for continuance and the denial thereof.” The

record does not reflect the motion being made or overruled.

Judge Schroder denied the motion for rehearing. (NR 10,

App. 4)

There was no adverse parties in the Kenton District (Pro-

bate) Court.

Petitioner filed an appeal (Petition for Writ of Mandamus)

in the Kenton Circuit Court to compel Judge Schroder to ap-

point Petitioner as administrator of Petitioner's deceased

mother’s estate or show cause why he refused to do so. (App.

)

P. 5) No response to Petitioner's verified complaint was filed

in the circuit court on behalf of Judge Schroder, and no hear-

ing was held.

On February 16, 1989, the Kenton Circuit Court entered

an order affirming. (App. P. 9) The Kenton Circuit Court did

not address Petitioner's Petition for Writ of Mandamus. Peti-

tioner filed a motion for rehearing on February 24, 1989,

which was overruled on April 12, 1989. (App. P. 11) Peti-

tioner filed a motion for discretionary review (an appeal of

Kenton Circuit Court order of February 16, 1989, App. P.

12) in the Kentucky Court of Appeals on March 20, 1989.

(App. P. 12) The Kentucky Attorney General objected to (ue

appeal. On May 9, 1989, the Kentucky Court of Appeals

denied the appeal. (App. P. 13) On September 20, 1989, the

Kentucky Supreme Court denied Discretionary Review.

(App. P. 14)

aes aaa a aaa iin

6

REASONS FOR GRANTING THE WRIT

Can District (Probate) Judge arbitrarily deny person duly

qualified and entitled to, appointment as administrator of

deceased mother’s estate, said appointment without just

cause? K.R.S. 395.040(1)?

K.R.S. 395.040(1)? guarantees petitioner the rights and

privileges* of being appointed administrator of his deceased

mother’s estate.

It is the established rule in Kentucky that the county

court (now District (Probate Court)) must conform to

the directions set forth in the above subsection in the ap-

pointment of a personal representative to administer an

estate. The right is a valuable one, and a person entitled

to perform such a trust cannot be deprived of it without

legal cause. Skaggs v. Cook, 374 S.W. 2d 857, 859 (KY

1964)

Where only one qualified person applied for appoint-

ment as administrator and the heirs and distributees

agreed to his appointment, there was no justification for

the county court (now District (Probate Court)) refusing

to appoint him and the Circuit Court properly ordered

his appointment. Holt v. Keller, 319 S.W. 2d 45 (KY CA

1958)

No legal cause was presented at the hearing held on April

25, 1988. (NR 1, 2, 3, See App. P. 1) to deny Petitioner the

appointment as Administrator of his deceased mother’s estate

and the court gave no justification for refusing the appoint-

ment.

Judge Schroder’s conclusion, “property in survivorship” is

not supported by the record and did not address the issue

before the court. KRS 395.040(1).?

3 Article IV, § 2(1) U.S. Constitution provides, The Citizens of each State

shall be entitled to all privileges and Immunities of Citizens in the several

States.

7

“Property in survivorship” suggests a testamentary instru-

ment executed by two or more persons, in pursuance of a

common intention, for the purpose of disposing of their

several interests in property owned by therm in common, or of

their separate property treated as a common fund, to a third

person. (See Black’s Law Dictionary, fifth addition, P. 1433,

Joint Wills) (Issue not before the court)

Judge Schroder’s refusal to grant the appointment was

clearly erroneous and an abuse of discretion.

Petitioner had requested that the rehearing held on June 1,

1988 be recorded. (NR 5, See App. P. 1). Judge Schroder

refused to record the proceedings. Judge Schroder’s Finding

of Facts, entered on June 1, 1988, (NR 10, App. P. 4) is not

supported by the record. There is no deed executed by Eddie

Thompson, Sr. and Mallie Thompson, in pursuance of a com-

mon intention, for the purpose of disposing of their several in-

terests in property owned by them in common.

There are no adverse parties in this action.

Neither the statutes nor the civil rules indicate the pro-

cedure for an appeal if there are no adverse parties. If an

application in which all interested parties have joined is

denied, they have no adversary against whom to take an

appeal. In such a case the remedy that suggests itself as

appropriate is mandamus against the judge who has

refused the application. ... Technically, the (Peti-

tioner) did not sue for mandamus, but by making the

judge the appellee in its appeal to the circuit court (Peti-

tioner) accomplished the same purpose, so we treat that

appeal as if it had been an original action in the circuit

court for mandamus. Schmitt v. The Kentucky Trust

Company of Louisville, 429 S.W. 2d 839, 841.

Even though there was no reply to the appeal (Petition for

Writ of Mandamus, App. P. 5) or any evidence in the record

of any deed or other testamentary instrument executed by E.

J. Thompson, Sr. and/or Mallie Thompson in pursuance of a

8

common intention, for the purpose of disposing of any in-

terest in any property, the Kenton Circuit Court, on

February 16, 1989, (App. P. 9), concluded that, “The hus-

band (E. J. Thompson, Sr.) of the deceased was present and

had deeds showing all property was held in survivorship.”

The decision of the Kenton Circuit Court is clearly erroneous,

not supported by the record and an abuse of discretion.

The decision denied the privileges and rights allowed by

K.R.S. 395.040(1)? and contrary to Article IV, § 2(1).°

Petitioner filed a timely motion for rehearing on February

24, 1989. The Kenton Circuit Court overruled the motion on

April 12, 1989. (App. P. 11)

In failing to consider the merits of Petitioner’s appeal (Peti-

tion for Writ of Mandamus, App. P. 5), the Kenton Circuit

Court effectively dismissed Petitioner’s federal claim under

Article IV, § 2(1)* as though the complaint, (Pet. for Writ of

Mandamus, App. P. 5a) failed to state a claim.

Civil Rules authorize a court to dismiss a claim only on |

the basis of a dispositive issue. Conley v. Gibson, 355

U.S. 41, 45-46, 78 S Ct 99, 101-02, 2 L Ed 80 (1957).

Rule permitting dismissal for failure to state claim does

not countenance dismissal based on judge’s disbelief of

complaint’s factual allegations. Neitzke v. Williams, 109

S Ct 1827, 1832 (1989).

Petitioner filed a timely appeal (motion for discretionary

review) in the Kentucky Court of Appeals on March 20, 1989.

(App. P. 12) Petitioner had to refile the appeal, because the

brief did not contain certification of service on the circuit

court clerk.

Judge Schroder did not file a response in the Court of Ap-

peals. The Court of Appeals denied Petitioner's motion for

appeal, without stating reasons. (App. P. 13) By denying the

appeal, the Kentucky Court of Appeals denied petition and

9

appeal and the right of access to court guaranteed by the Ist

Amendment to the U.S. Constitution.‘

The contract clause, the full faith and credit clause,

the privilege or immunities clause, all fetter the freedom

of a state to deny access to its court however much it

may regard such withdrawal of jurisdiction, ‘the adjec-

tive law of the state’ or the exercise of its right to

regulate ‘the practice and procedure’ of its courts.

Broderick v. Rosner, 294 U.S. 629, 642, 79 L Ed 1100,

1107, 55 S Ct 589.

In denying motion for discretionary review, (App. P. 14),

the Kentucky Supreme Court recognized that the Kentucky

Court of Appeals had denied Petitioner access to court, when

it said, “The motion to review the decision of the Court of

Appeals is denied.” The Court of Appeals denied Petitioner

an appeal of his Petition for Writ of Mandamus (App. P. 5) to

compel Judge Schroder to grant the letter of administration.

Whatever springs the state may set for those who are

endeavoring to assert rights that the state confers, the

assertion of federal rights, when plainly and reasonably

made, is not to be defeated under the name of local

practice. Davis v. Wechsler, 263 U.S. 22, 24, 68 L Ed

143, 145, 44 S Ct 13.

(Neither the Kenton Circuit Court, nor the Kentucky

Court of Appeals) may properly escape their con-

stitutonal obligation by simple devise of denying jurisdic-

tion in a case where the court is otherwise competent.

Kenny v. Supreme Lodge, L.O., 252 U.S. 411, 415, 64 L

Ed 638, 640, 40 S Ct 371.

4 Ist Amendment, U.S. Constitution provides: Congress shall make no

law respecting the establishment of religion or prohibiting the free exercise

thereof, or abridging the freedom of speech, or of the press, or the right of

the people peaceably to assemble, and to petition the government for a

redress of grievances.

—_$_$ $$ ——

10

CONCLUSION

It is axiomatic that,

Interpretation of a statute must being with the statute’s

language. Mallard v. U.S. District Court, Southern

District of Iowa, 109 S Ct 1814, 1818; U.S. v. Ron Pair

Enterprises, Inc., 109 S Ct 1026, 1030.

K.R.S. 395.040(1)’s* operative term is “shall”: The court

SHALL grant administration to the relations of deceased who

apply...

Only petitioner applied and other interested parties con-

sented.

SHALL as used in statutes, contracts, or the like, is

generally imperative or mandatory. ... Black’s Law Dic-

tionary, Fifth Edition, P. 1233.

Federal Court may enjoin unconstitutional action by state

officials (or State Court). Puerto Rico v. Branstad, 107 S Ct

2802, 2808.

It is clear that the Kentucky Court of Appeals denied Peti-

tioner an appeal of the Kenton Circuit Court’s refusal to con-

sider Petitioner’s claim that Petitioner was entitled to a letter

of administration of Petitioner's deceased mother’s estate,

pursuant to K.R.S. 395.040(1)? and Article IV, § 2(1), of the

U.S. Constitution.*

Wherefore, this Court should vacate the order of the Ken-

tucky Court of Appeals and remand the case back to the Ken-

ton Circuit Court with instructions that Petitioner be granted

the letter of administration requested therein, and that Peti-

tioner recover his costs expended herein.

Eddie Thompson, Jr.

11

AFFIDAVIT OF PROOF OF SERVICE

Comes now Eddie Thompson, Jr., Petitioner herein, first

being duly cautioned and sworn and states as follows: On

December , 1989, I deposited in a United States Post

Office, three (3) copies of the instant Petition for Writ of Cer-

tiorari, in duly addressed envelopes, first class postage

prepaid to: Hon. Wilfrid Schroder, Kenton District Judge,

Hon. Raymond E. Lape, Kenton Circuit Judge, County

Building, Third and Court, Covington, Ky. 41011, Hon.

Frederic Cowan, Kentucky Attorney General, Capitol

Building, and Mr. John Scott, Clerk, Kentucky Court of Ap-

peals, 403 Wapping Street, both of Frankfort, Ky. 40601, and

the Solicitor General, Department of Justice, Washington,

D.C. 20530.

Eddie Thompson, Jr.

Subscribed and sworn to before me this day of

December, 1989.

NOTARY

My Commission

Date

4/25/88

/ 1/88

6/29/88

7/ 7/88

7/11/88

Item

~PyVr >

APPENDIX

DOCKET ENTRIES

Proceeding

Notice of hearing filed.

Petition for appt. of admtr. filed.

(tendered)

Waiver of Recording filed.

Calendar docket from this date filed.

Petition for rehearing filed.

Mental Status Evaluation filed.

Report of Interdisciplinary evaluation

team filed.

Report of second Interdisciplinary evalua-

tion team filed.

Deed of both parties filed. Eddie Thomp-

son & Eddie Thompson, Jr.

Calendar docket from this date filed.

ESTATE CLOSED PER JUDGE WIL-

FRID A. SCHRODER.

Notice of Appeal filed by Eddie Thomp-

son.

Letter to Mr. Thompson informing him of

filing fee filed.

ORIGINAL FILE TRANSFERRED TO

CIRCUIT COURT, AFTER FILING FEE

WAS PAID BY MR. EDDIE THOMP-

SON, RECEIPT OF $45.00 was included.

gl.

la

2a

[LETTERHEAD OF COMMONWEALTH OF KENTUCKY

COURT OF JUSTICE]

\ Case No. 88-P-399

In re: Estate of Mallie Thompson

Birth date of decedent: June 8, 1912

Residence: 1208 Russell St., Covington, Ky. 41011

who died intestate on the 14 day of November, 1968

PETITION FOR APPOINTMENT OF ADMINISTRATOR

Petitioner Eddie Thompson, Jr. states that the statements

in the caption are true and that the names of the surviving

spouse, heirs at law and next of kin known to applicant are as

follows:

Name: E. J. Thompson, Sr.; Relationship: Husband; Age: 82;

Address: 132 W. 14th Street

Name: Rudy Thompson; Relationship: Son; Age: 46; Address:

1403 Russell Street

Name: James Thompson; Relationship: Son; Age: 44; Ad-

dress: 1417 Russell Street

Name: Eddie Thompson, Jr.; Relationship: Son; Age: 52; Ad-

dress: None given

Deceased owned or had interest in the following listed Real

Estate with estimated market values as follows:

1208 Russell Street, 1209 Russell Street, 1417 Russell Street,

117 Acre Farm, Union, Ky.; Values unknown; 115 W. 11 St.

x x *

Petitioner applies for the probate of decedent’s will which

is filed herewith and which is the last will and testament of

decedent.

Petitioner prays that Eddie Thompson, Jr., whose address

is 309 Pleasant, be appointed as Executor-Administrator of

said estate who offers as surety on the bond the following:

3a

Petitioner says that all statements in the foregong are true.

/s)s EDDIE THOMPSON, Jr., 309 Pleasant Street

Subscribed and sworn before me by petitioner this 7th of

April, 1988.

My commission will expire 3-16-92

/s) MARILYN SMITH

Notary Public, Kenton County, Kentucky

* * *

4a

CALENDAR

April 25, 1988

Probate Court

Wilfrid A. Schroder, Judge

Estate of Mallie Thompson

Admtr: Eddie Thompson, Jr.

88-P-399

Waiver of recording, property in survivorship, no need for

probate.

June 1, 1988, 3:15 p.m.

IN RE: Estate of Mallie Thompson

88-P-399 |

Petition for rehearing, Findings; On April 25, 1988, this

court denied the petition of Eddie Thompson, Jr. to open an

estate on his mother. The husband of the deceased was pres-

ent and had a deed showing all property was held in survivor-

ship. The court ruled there was no need for probate and

granted the husband's (E. J. Thompson, Sr.) request to deny

the appointment. Exhibits A, B, C introduced by avowal. Ex-

hibit D by avowal. Motion Denied.

Wilfrid Schroder

JUDGE i

5a

KENTON CIRCUIT COURT

FIRST DIVISION

NO. 88 X 23

IN RE: ESTATE OF MALLIE THOMPSON

EDDIE THOMPSON, JR.

APPELLANT

VS.

WILFRID SCHRODER, JUDGE

APPELLEE

STATEMENT OF APPEAL

The name of appellant is Eddie Thompson, Jr., P.O. Box

1221, Covington, Ky. 41012

Honorable Wilfrid Schroder, Kenton District (Probate)

Judge Presided

No interested Party has opposed the appointment of Ap-

pellant as administrator, thus Honorable Judge Schroder is

the Appellee.

Appellant desires oral arguments.

No Cross appeal has been filed and no supersedeas bond

has been filed.

DATE OF ENTRY OF ORDER AND JUDGMENT

Petition for Appointment of Administrator was denied on

April 25, 1988 (NR 4, App. P. 7), Petition for rehearing

denied on June 1, 1988 (NR 10, App. P. 21) Notice of Appeal

was filed on June 29, 1988 (NR 11, App. P. 22)

QUESTION PRESENTED

Can District (Probate) Judge arbitrarily deny person en-

titled to appointment as Administrator, said Appointment?

6a

STATEMENT

On April 25, 1988, The Kenton District (Probate) Judge

Schroder held a hearing on a petition filed by appellant to be

appointed Administrator of his deceased Mother's (Mallie

Thompson’s) Estate, with notice to the interest parties; Ap-

pellant’s father (E. J. Thompson, Sr.) and appeilant’s

Brother’s (James and Rudy Thompson). All interested parties

agreed before the hearing that no objections would be filed to

the appointment, thus appellant filed a waiver of recording of

proceedings. James and Rudy Thompson did not appear at

the hearing held on April 25, 1988. E. J. Thompson, Sr. did

appear. E. J. Thompson, Sr. had a copy of a deed from ap-

pellant and his wife (Patricia Thompson) to E. J. Thompson,

Sr. and his wife (Mallie Thompson). (App. P. 18) E. J.

Thompson, Sr. made no effort to introduce the deed into

evidence or say he objected to appellant being appointed Ad-

ministrator of Mallie Thompson’s estate. Appellant informed

the court that affidavits of descent had been filed on all real

estate involved in the estate. Judge Schroder asked appellant,

if appellant had prepared a letter of administration. Ap-

pellant replied no. When appellant left the hearing, appellant

assumed a letter of administration would be granted. Three

(3) days after the hearing when appellant visited clerk’s of-

fice, no calendar docket denying appellant’s appointment as

administrator. Appellant visited Judge Schroder’s Chambers,

where Judge Schroder informed appellant he (Judge

Schroder) would not grant the appointment. When appellant

asked Judge Schroder why not? Judge Schroder said, “because

the real estate was in Survivorship”. Appellant informed

Judge Schroder that there was no question of survivorship of

any property before the court, that the only question was,

“the appointment of appellant as administrator of his de-

ceased mother’s estate”. Appellant asked Judge Schroder to

give his legal reasons for denying the appointment. Judge

Schroder could give none.

Appellant filed a motion for a rehearing and requested that

the proceeding be stenographically recorded. A hearing was

ee «

OT 8 OB TT

7a

set for June 1, 1988. Hon. Steve Jaeger, Judge was scheduled

to hear probate cases at the time the rehearing was scheduled.

Recognizing his earlier decision was erroneous, Judge

Schroder declined to let a judge who may have been impartial

hear the case.

At the outset Judge Schroder remarked, if there was

nothing new, the motion would be denied. Appellant in-

formed the court that since there were no objections to the

appointment, appellant was the appointment as a matter of

law. Appellant also informed the court that his dad, E. J.

Thompson, Sr. had been declared disable to manage his

business affairs by a interdisclinary team, that Mr. John

Elfers, Kenton County Attorney had fraudulently withheld

this information from a Jury, but appellant had copies of the

reports. (NR 6, 7, 8, App. P. 9, 12, 15) Appellant further in-

formed the court that appellant had a copy of the deed that

E. J. Thompson, Sr. had at the original hearing and that ap-

pellant wished to question E. J. Thompson, Sr. for the record

as to whether he requested Judge Schroder to deny

Appellant’s request for the appointment as administrator for

Mallie Thompson’s estate. Judge Schroder said, “that could

not be done, because E. J. Thompson, Sr. was not present.”

Appellant made oral motion for a continuance, so E. J.

Thompson, Sr. may put any objections he had, if any, against

Eddie Thompson, Jr. being appointed administrator of Mallie

Thompson Estate on the record. Judge Schroder OVER-

RULED that motion. Appellant requested that the record

reflect the motion and the ruling. Judge Schroder said the

record would reflect the motion and the ruling. The record

does not reflect the motion or the ruling. The ‘motion for

rehearing was OVERRULED. The denial of the appointment

was fraudulent and racially motivated, denying due process

and equal protection of the law under the 14th amendment of

the U. S. Constitution.

Appellant asked in the Clerk’s Office, how many days he

had to file a notice of appeal. That information was not

available from the Clerk’s office. On June 29, 1988 Appellant

8a

filed a notice of appeal and asked how the filing fee was. Ap-

pellant was told by the deputy clerk that no fee was due. On

July 7, 1988 the Clerk’s office informed Appellant that a fifty

(50.00) dollar filing fee was due. (NR 12, App. P. 23) When

appeared to pay the fee, the fee was Forty-five (45.00)

dollars.

The copy of the death certificate Appellant filed with the

petition for the appointment as administrator is not in the

record. A copy is in the Appendix, page 4. The two (2) entries

on the calendar docket, NR 4, “Property in survivorship and

no need for probate” were not on record, when appellant

checked the record on April 28, 1988. NR 9 Deed of both par-

ties filed. Eddie Thompson & Eddie Thompson, Jr. is

fraudulent. E. J. Thompson, Sr. was not a party to this ac-

tion, never offered any deed to be filed and was not present

on June 1, 1988. Appellant was told by Judge Schroder’s

secretary that there was no tapes or transcript of the rehear-

ing.

/s) EDDIE THOMPSON, JR.

Subscribed and sworn to before me this 29th day of July,

1988.

/s) MARILYN SMITH

Notary

My Commission expires: 3-16-92

Ya

COMMONWEALTH OF KENTUCKY

SIXTEENTH JUDICIAL CIRCUIT

KENTON CIRCUIT COURT

FIRST DIVISION

NO. 88-X-23

IN RE: ESTATE OF MALLIE THOMPSON

(EDDIE THOMPSON, JR.)

APPELLANT,

vs.

WILFRID SCHRODER, JUDGE,

APPELLEE.

APPEAL FROM THE KENTON DISTRICT COURT

HON. WILFRID SCHRODER, JUDGE

ORIGINAL CASE NO. 88-P-399

(Entered February 16, 1989)

AFFIRMING

This is an Appeal from the Kenton District Court from an

Order denying Petitioner's request to be appointed Ad-

ministrator of his deceased mother’s estate (Mallie Thompson

— Date of Death November 14, 1968).

The Notice of Appeal was tendered June 29, 1988, filed of

record July 11, 1988, and the Statement of Appeal was filed

July 29, 1988. The Court will consider that the Notice of Ap-

peal was filed in a timely manner because there was some

problem with the filing fee, however, that had been paid,

and The Court considers that the Notice of Appeal was timely

filed.

A review of the record indicates that on June 1, 1988, at

approximately 3:15 P.M. Eddie Thompson, Jr., the son of the

deceased, Mallie Thompson, had petitioned The Court to be

appointed as the Administrator of his mother’s estate who had

10a

died on November 14, 1968, in Memphis, Shelby County,

Tennessee. He had listed the names of his father, E. J.

Thompson, Sr., and his brother, Rudy Thompson and James

Thompson and himself as_heirs at law and next of kin.

The Court entered Findings at that time that on April 25,

1988, The Court denied the Petition of Eddie Thompson, Jr.,

to open an estate on his mother. The husband of the deceased

was present and had deeds showing all property was held in

survivorship. The Court ruled there was no need for probate

and granted the husband, E. J. Thompson Senior’s, request to

deny the appointment of Eddie Thompson, Jr., as the Ad-

ministrator of the estate.

This Court has reviewed the Statement of Appeal in detail

along with the entire file and it would appear from the ap-

plication of the Appellant the only property that the deceased

owned or had an interest in was real estate located at 1208

Russell Street, 1209 Russell Street, 1417 Russell Street, Cov-

ington, Kenton County, Kentucky; a one hundred and seven-

teen acre farm in Union, Boone County, Kentucky and prop-

erty located at 115 West Eleventh Street, Covington, Kenton

County, Kentucky.

That under the personal property and estimated market

values there is no property listed.

Since there was no showing that the deceased had an estate

other than that which was held in survivorship with her hus-

band, that there was no reason to open an estate. Courts are

not obligated to make futile gestures. “Frustra probatur quod

probatum non relevat.”

The Judgment of the Kenton District Court is AFFIRMED

and is in full force and effect.

So ORDERED this 16th day of February, 1989.

/s) RAYMOND E. LAPE, JR.

JUDGE

lla

COMMONWEALTH OF KENTUCKY

SIXTEENTH JUDICIAL CIRCUIT

KENTON CIRCUIT COURT

FIRST DIVISION

NO. 88-X-23

IN RE: THE ESTATE OF MALLIE THOMPSON

(EDDIE THOMPSON, JR.)

PETITIONER-APPELLANT,

vs.

WILFRID SCHRODER, JUDGE,

RESPONDENT-APPELLEE.

ORDER

(Entered April 12, 1989)

This matter is before the Court on the Motion of the Ap-

pellant for Rehearing and/or Reconsideration and the Court,

having reviewed the file and being sufficiently advised,

IT Is NOW, THEREFORE, ORDERED that the Motion

is hereby OVERRULED and the Judgment of the Kenton

District Court is in full force and effect.

So ORDERED this 11th day of April, 1989.

/s) RAYMOND E. LAPE, JR.

JUDGE

12a

COMMONWEALTH OF KENTUCKY

COURT OF APPEALS

FILE NO. 89-CA-000632

EDDIE JR THOMPSON

APPELLANTS

vs.

WILFRID SCHRODER

(JUDGE KENTON DISTRICT COURT)

APPELLEES

THE APPELLANT (#1 BELOW) HAS TENDERED FOR

FILING ON MAR. 20TH 1989 THE PLEADING IDEN-

TIFIED BELOW WHICH CANNOT BE FILED BECAUSE

IT IS DEFICIENT AS EXPLAINED BELOW. THE

PLEADING MUST BE CORRECTED TO MEET

MINIMUM FILING STANDARDS.

IT IS ORDERED THAT THE CLERK SHALL RETURN

THE PLEADING AND THE APPELLANT (#1 BELOW)

SHALL HAVE TEN (10) DAYS FROM THE DATE OF

THIS ORDER TO MAKE THE NECESSARY CORREC-

TIONS. TIME FOR ANY FURTHER STEPS WILL BEGIN

TO RUN FROM THE DATE THIS PLEADING IS FILED,

NOTICE OF WHICH WILL BE SENT.

ENTERED: 03/20/89

J. WILLIAM HOWERTON

CHIEF JUDGE,

COURT OF APPEALS

PLEADING: DEFICIENT MOTION FOR DISCRE-

TIONARY REVIEW

DEFICIENCY REASON(S):

76.70 (7) CERTIFICATE OF SERVICE MUST SERVE

CIRCUIT COURT CLERK

#1: EDDIE JR THOMPSON

l3a

COMMONWEALTH OF KENTUCKY

COURT OF APPEALS

NO. 89-CA-632-D

EDDIE THOMPSON, JR.

MOVANT

vs.

WILFRID SCHRODER, PROBATE JUDGE

KENTON DISTRICT COURT

RESPONDENT

ON MOTION FOR DISCRETIONARY REVIEW

FROM KENTON DISTRICT COURT

ACTION NO. 88-XX-23

ORDER

BEFORE: HOWERTON, CHIEF JUDGE, CLAYTON,

AND REYNOLDS, JUDGES.

Having considered the motion for discretionary review and

the response thereto, and being otherwise sufficiently advis-

ed, the Court ORDERS the motion be DENIED.

/s) CHARLES H. REYNOLDS

JUDGE, COURT OF APPEALS

ENTERED: May 9, 1989

l4a

SUPREME COURT OF KENTUCKY

89-SC-417-D

(89-CA-632)

KENTON CIRCUIT COURT

88-XX-023

EDDIE THOMPSON, JR.

MOVANT

vs.

WILFRID SCHRODER,

PROBATE JUDGE, KENTON DISTRICT COURT

RESPONDENT

ORDER DENYING DISCRETIONARY REVIEW

The motion for review of the decision of the Court of Ap-

peals is denied.

ENTERED September 20, 1989.

/s) ROBERT F. STEPHENS

Chief Justice